Searles v. Comm'r of Soc. Sec.

• Decision Date: 30 November 2015
• Docket Number: 1:14-CV-1124 (TJM/TWD)
• Parties: STEVEN MARSHALL SEARLES, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Northern District of New York

STEVEN MARSHALL SEARLES, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

1:14-CV-1124 (TJM/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

November 30, 2015

APPEARANCES:

OLINSKY LAW GROUP

Counsel for Plaintiff

One Park Place

300 South State Street, Suite 420

Syracuse, New York 13202

HON. RICHARD S. HARTUNIAN

United States Attorney for the

Northern District of New York

Counsel for Defendant

Room 218

James T. Foley U.S. Courthouse

Albany, New York 12207

OFFICE OF GENERAL COUNSEL

Social Security Administration

26 Federal Plaza, Room 3904

New York, New York 10278

OF COUNSEL:

HOWARD D. OLINSKY, ESQ.

SANDRA M. GROSSFELD, ESQ.

Special Assistant United States Attorney

STEPHEN P. CONTE, ESQ.

Chief Counsel, Region II

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

REPORT AND RECOMMENDATION

This matter was referred to the undersigned for report and recommendation by the Honorable Thomas J. McAvoy, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3. This case has proceeded in accordance with General Order 18 of this Court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. Both parties have filed briefs. (Dkt. Nos. 11 and 12.) Oral argument was not heard. For the reasons discussed below, it is recommended that the Commissioner's decision be affirmed.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff was forty-seven years old at the time of the hearing. (Administrative Transcript at 40.¹) He graduated from high school, but has no further education. (T. at 41.) Plaintiff has not worked since January 2012. Id. He was a residential counselor for thirteen years before being fired in January 2012 for sleeping on the job. (T. at 41-42.) Plaintiff alleges disability due to his inability to sit for long periods of time, depression, problems standing for long periods of time, and a mass on his left buttock. (T. at 48.)

Plaintiff applied for disability insurance benefits and Supplemental Security Income ("SSI") on June 4, 2012. (T. at 22.) The application was denied on October 26, 2012. Id. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"). Id. The hearing was held on October 30, 2013. Id. On January 21, 2014, the ALJ issued a decision finding that Plaintiff was not disabled. (T. at 19.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on June 10, 2014. (T. at 3.) Plaintiff then timely commenced this action on September 12, 2014. (Dkt. No. 1.)

II. APPLICABLE LAW

A. Standard for Benefits

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he or she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A) (2006). In addition, the plaintiff's

physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

§ 1382c(a)(3)(B).

Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a)), the Social Security Administration ("SSA") promulgated regulations establishing a five-step sequential evaluation process to determine disability. 20 C.F.R. § 416.920(a)(4) (2015). Under that five-step sequential evaluation process, the decision-maker determines:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a "residual functional capacity" assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014.) "If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24 (2003).

The plaintiff-claimant bears the burden of proof regarding the first four steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)). If the plaintiff-claimant meets his or her burden of proof, the burden shifts to the defendant-Commissioner at the fifth step to prove that the plaintiff-claimant is capable of working. Id.

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Featherly v. Astrue, 793 F. Supp. 2d 627, 630 (W.D.N.Y. 2011) (citations omitted); Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). A reviewing court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson, 817 F.2d at 986.

A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g) (2012); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). An ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision. Roat v. Barnhart, 717 F. Supp. 2d241, 248 (N.D.N.Y. 2010);² Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). "Substantial evidence has been defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a mere scintilla" of evidence scattered throughout the administrative record. Featherly, 793 F. Supp. 2d at 630; Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams, 859 F.2d at 258 (citations omitted). However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972); see also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

III. THE ALJ'S DECISION

Here, the ALJ found that Plaintiff has the following severe impairments: obesity, kidney injury, osteoarthritis of the left knee, lumbar degenerative disc disease, headaches, and left calf ulcer. (T. at 24.) He found that Plaintiff did not have an impairment or combination ofimpairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (T. at 28; see also 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926.) The ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform the full range of sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a). Id. He found that considering Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that the claimant can perform. (T. at 30; see also 20 C.F.R. §§ 404.1569 and 416.969.) Therefore, the ALJ found Plaintiff not disabled. (T. at 31.)

IV. THE PARTIES' CONTENTIONS

Plaintiff claims that the RFC determination by the ALJ was not supported by substantial evidence because the ALJ did not discuss the treating physician assistant's opinion and the credibility determination was incorrect; and that the Step Five finding was not supported by substantial evidence because the ALJ did not consult a vocational expert. (Dkt. No. 11.)

Defendant contends that the ALJ's decision applied the correct legal standards and is supported by substantial evidence and thus should be affirmed. (Dkt. No. 12.)

V. DISCUSSION

A. Opinion Evidence and the RFC Determination

Plaintiff argues that the ALJ's RFC was not supported by substantial evidence. (Dkt. No. 11 at 15.³) Specifically, Plaintiff argues that the ALJ should have given weight to the opinion of Physician Assistant Sebastian Martorana, RPA-C ("PA Martorana"); that the ALJ failed toproperly weigh and apply the opinion of Mena Stramenga, Ph.D.; and that the ALJ's RFC assessment fails to consider Plaintiff's non-severe impairment of a left buttock abscess and his obesity. Id. at 15-23. Defendant argues that the ALJ's RFC assessment was proper and supported by substantial evidence. (Dkt. No. 12 at 8-14.)

A claimant's RFC is the most he can do despite his limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on...